I HAVE watched with utter amazement as lawyers and non-lawyers have continued to misinterpret the scope of the President’s powers to deploy our Armed Forces, as provided for in Sections 217 and 218 of the Constitution.
Section 218 is not an independent section. It is qualified by Section 217, which clearly lays out the circumstances and conditions under which our Armed Forces can be deployed. These are:

(i) for the defence of Nigeria from external aggression.

(ii) for the maintenance of the territorial integrity and securing the borders of Nigeria from violation on land, sea and air,

(iii) for suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President; subject to such conditions as may be prescribed by an Act of the National Assembly.

The powers of the President as provided in Section 218(1) are qualified and limited by Section 217(2). In other words, the powers of the President to determine the operational use of the Armed Forces (Section 218) is not writ large. It is limited to deployment of troops for the defence of Nigeria from external aggression, protecting our territorial integrity and for suppressing [internal] insurrection in aid of civil authorities. In this last case, i.e., suppression of insurrection and assistance to civil authorities, the President’s powers can only be deployed on terms and conditions prescribed by an Act of the National Assembly. To this extent, this third use of the President’s powers is subject to conditions laid down by the National Assembly.

Furthermore, the power to deploy troops to suppress an insurrection is exactly that; suppressing insurrection, not deployment for election duties.
To summarize what I have stated so far, whilst the President is free to deploy our Armed Forces to defend our country against aggression and to maintain our territorial integrity, without control, he can only deploy them against insurrection and other internal armed conflicts under the guidance and control of National Assembly, through an Act of the latter.

Section 218 is not an independent provision.
The recent pronouncements of our Courts that the use of troops for electoral purposes is illegal and unconstitutional is not new. This issue came up in the election petitions and judgments of the 2003 elections and such deployment for direct election duties was declared illegal and unconstitutional.

Constitutional authority

In Buhari v. Obasanjo [2005] 2 NWLR (Pt. 910) 24, at 520 – 521, Nsofor, JCA, stated as follows:
“Evidence is galore which I accepted that the 1st respondent [President Obasanjo] as Commander-in-Chief of the Armed Forces of Nigeria called out the military and the mobile policemen armed, to almost every Local Government Area in Akwa Ibom (See D.W.4). In Benue, see D.W. 72 (Colonel Emmanuel Clement Samuel Ifon), and in Enugu State, Ebonyi, indeed in each of the States above enumerated. And there was no state of war in any of those States, no emergency declared therein. On the other hand there was peace and calm and tranquility.

And I ask this: Had he, 1st respondent, the constitutional authority so to do where there was peace and calm during the election? See section 217 and 218 of the Constitution, 1999. Based on the evidence on both sides, I am satisfied that the 1st respondent had no such constitutional authority so to do. The deployment of the military and police was therefore unconstitutional.

There was evidence overwhelmingly that the soldiers illegally deployed before the presidential election in the States shot and killed several innocent Nigerians e.g. in Bayelsa State, in Akwa Ibom; injured so many in Igbo-Eze North L.G.A. of Enugu. Not one single arrest was made. No police investigation. Why?

The principle applicable is: Qui peccat per alium, peccat per se.

I am satisfied based on the evidence from these States that the soldiers and police were called in crisis-free, peaceful and calm States of Nigeria before the 19/04/2003 presidential election to intimidate and harass the electorate.”

It is important to stress that in coming to the conclusion that the deployment of troops to election venues was illegal and constitutional, the honourable Justice of the Court of Appeal, expressly took the provisions of Section 218 of the Constitution into consideration.

This should put an end to the deliberate confusion being injected into this debate by people who have “Ekiti” type of agenda in mind for the 2015 general elections.

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